Mr X and the Department of Agriculture Food and the Marine (FOI Act 2014)

Mr X and the Department of Agriculture Food and the Marine (FOI Act 2014)

Case number: 170371

Whether the Department was justified in refusing to grant access to records and information concerning the recruitment and employment history of a former staff member

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 May 2017, the applicant made an FOI request to the Department, in which he referred to an interview he had had in the Public Appointments Service (the PAS) for a particular Departmental post. He requested "the description of the duties, title of post held and for what time when employed by" the Department in respect of two individuals (Mr A and Mr B), who had been on the interview board concerned. The Department's decision of 26 June 2017 gave certain information about the two board members, including that Mr A was a former member of the Department's staff, and the grade at which he retired. The Department refused to release further information about the board members on the basis that it was personal information about them and exempt under section 37 of the FOI Act.

On 27 June 2017, the applicant sought an internal review. He said that the Department had not given Mr A's status at the time of the interview or said when he had retired. The applicant said that, if Mr A had served as a Locum Tenem from the date of his retirement until the present time, the requested information should have been provided under the FOI Act. He said he "accept[ed] the records ... provided on" Mr B.

The Department's internal review decision of 17 July 2017 said that the applicant had not requested information about Mr A at the time of the interview "but rather 'when employed by the Department' ". It said that Mr A's dates of employment were his personal information and exempt under section 37. It confirmed that Mr A had served as a Locum Tenem for various time periods subsequent to his retirement, including during the relevant interviews, and otherwise affirmed the decision on the request.

On 19 July 2017, the applicant sought a review by this Office of the Department's refusal to grant his request. He said he should have been provided with a "detailed account" in relation to both Mr A and B, at least from 1998 to the present, with a "description of duties, where worked grade and time when employed by" the Department.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the Department, and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is concerned with whether the Department has justified its decision to refuse to fully grant the applicant's request for "the description of the duties, title of post held and for what time when [Mr A was] employed by" the Department. It cannot cover records containing any information sought about Mr B, which the applicant excluded at internal review stage. Neither can it cover any records containing information not covered by the terms of the original request.

Finally, this Office has no role in confirming, or in asking the Department to confirm, whether assumptions made by the applicant are correct.

This Office's Approach To Directing Release of Parts of Records

Before I make my findings in this case, it is useful to summarise this Office's position on issues arising.

Requests for Records (Sections 11 and 12 of the FOI Act) vs. Requests for Information/Questions
The FOI Act provides for a right of access to records held by FOI bodies (section 11). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

However, requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Requirements in the FOI Act to Create Records (Section 17 of the FOI Act)
The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act.

Granting Access to Records With Exempt Information Redacted (Section 18)
Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Findings and Conclusions

The applicant's request seeks information. It must be taken as a request for access to records that would give the applicant the information that he seeks.

Scope of the Original Request
The applicant considers his request to cover records containing information about Mr A's arrangements with the Department after he retired. I do not agree.

His request clearly sought information about Mr A "when employed by" the Department. One would normally expect the term to encompass the timeframe in which there was an employer/employee relationship between the relevant parties. The Department has stated, as a matter of fact, that Mr A has retired. I have no reason to dispute this.

The arrangements under which Mr A has since served as a Locum Tenem do not necessarily make him "employed" by the Department. This is a point illustrated by the applicant himself, who says that he is "engaged/employed as a Locum Tenem by the Department" and "[a]ccording to Revenue ... [is] employed as a contractor."

In short, the applicant's assertions give me no reason to consider Mr A to be employed by the Department. Therefore, I do not accept that his request covers any records containing information about Mr A that may have been created since his retirement.

Pre-Commencement Records
Section 11(5) of the FOI Act provides for a limited right of access to records that were created before the commencement of the FOI Act (21 April 1998 in the case of the Department). I would no reason, based on the applicant's arguments, to consider that he would have any right of access to any records within the scope of the request that were created before 21 April 1998.

Description of Mr A's Duties
As the applicant knows, the Department says that a relatively detailed description of duties is provided in competition booklets, with specific duties being agreed between an officer and his or her line manager on an ongoing basis.

(i) Competition Booklets
The Department says it cannot locate any competition booklets (some of which, I note, would be pre-commencement records) for when Mr A was recruited or promoted. It is willing to grant access to other competition booklets relevant to the timeframe in which Mr A was a serving member of the Department, should the applicant want them. The applicant has not said that he wants such booklets. I see no need to consider them further.

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist.

The applicant's arguments do not give me any reason to question the Department's position that competition booklets for when Mr A was recruited or promoted cannot be found. Having regard to the age of the records concerned, it also seems likely to me that at least some of them may no longer exist. I find section 15(1)(a) to apply.

(ii) Specific Duties Undertaken
The Department says that there is no systematic record of the specific duties undertaken by any veterinary officer or higher veterinary grade; neither are veterinary grades required to keep work diaries. It says that any performance management (PMDS) records held for Mr A relate almost exclusively to his performance ratings, with only sporadic references to duties.

The applicant's arguments do not provide me with any basis on which to question the Department's position that there is no extant, discrete, record of the specific duties undertaken by Mr A. Neither have I any reason to believe that the Department would be able to extract relevant details from its databases. I find that section 17(4) is not relevant.

It is debatable whether the sort of detail the applicant wants would, in fact, be included in hard copy (paper) files held by the Department, such as Mr A's PMDS, personnel or Human Resources (HR) records. However, the first matter to consider is whether the FOI Act requires me to direct the Department to extract any relevant details that may be in those hard copy records.

Extraction of Parts of Hard Copy Records
The term "record" is defined in section 2 of the FOI Act as including a range of material such as books, other written or printed material in any form, maps, drawings, discs, tapes etc. It is also defined as including a copy or part of any such material

Generally speaking, the question of whether the FOI Act requires an FOI body to grant access to relevant parts of hard copy records will depend upon the specific circumstances and the context in which a request falls to be considered. For example, it may be appropriate to direct an FOI body to extract details of a particular subject matter from the minutes of a meeting of an FOI body.

I have already outlined that this Office does not favour of the cutting or "dissecting" of records for the purpose of granting access to particular words, sentences or paragraphs under section 18. More significantly, this Office considers that the primary purpose of section 18 is to ensure that FOI bodies do not refuse access to records to which access has been sought simply because they contain some exempt information, regardless of the extent of the exempt information. It is worth noting that the definition of an exempt record means a record to which access would be refused on the ground that one or more of the exemptions in Part 4 of the Act apply or on the ground that the Act does not apply to the particular record, under Part 5.

In this case, any information within the scope of the request that may be held would be contained in Mr A's HR, PMDS and personnel files along with other information about him. That other information is outside the scope of the original request, rather than being exempt. I do not consider section 18 to impose an obligation on the Department to extract the relevant information in such circumstances.

In addition, the Act provides for a right of access to records held. It also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis). Even if it may be reasonably straightforward to identify the files on which the information may be held in this case, this does not change the fact that there exist no discrete records containing that information. Addressing this part of the request would essentially require the processing of records to create records that did not previously exist. Noting that there is no express requirement in the FOI Act to extract data from records held in hard copy (as opposed to the requirement to extract data held electronically), it seems to me that the Oireachtas did not intend that FOI bodies should be required to do so. That said, FOI bodies should take a reasonable and proportionate approach in determining whether to grant access to parts of records in order to address requests for information, as opposed to requests for specific, identified, records.

In the particular circumstances of this case, I find that the Department is not obliged to extract any relevant information that may be contained on hard copy files in order to respond to the applicant's request for a description of the specific duties undertaken by Mr A.

Summary in Relation to Specific Duties Undertaken
I have found that, in this case, the Department is not required to extract the relevant information either further to section 17(4) or from hard copy files. I also accept that discrete records containing the requested information do not exist. I find that the Department was justified in refusing to grant access to records containing a description of the specific duties undertaken by Mr A under section 15(1)(a), on the ground that the records sought do not exist.

Areas of Responsibility/Title of Posts Held
The Department says that electronic and paper HR records contain some details of Mr A's areas of responsibility/title of posts held, and time frames in which these were held.

My finding on section 15(1)(a) above applies to any argument on the applicant's part that I should direct the release of excerpts from Mr A's hard copy HR records.

The Department has supplied this Office with a record containing some information on this part of the request, which it extracted from its electronic HR records further to section 17(4) of the FOI Act. However, it argues that the information concerned is exempt under various provisions of the FOI Act, including sections 30(1)(a) and 37. The essence of the argument made regarding section 30(1)(a) is that the grant of access to records relevant to requests made in similar circumstances to the applicant's would discourage others from serving on interview boards, and could prejudice the effectiveness of interviews as part of the recruitment process generally. I do not necessarily disagree with the Department's position. However, section 37 seems to be the more appropriate exemption to consider first in the circumstances of this case.

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information. It is the Department's position that this provision applies to the record it created further to section 17(4), containing information relating to the "title of post held and for what time when [Mr A was] employed by" it (the record).

Section 2 of the FOI Act defines the term "personal information", and gives 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met. One example of personal information is that at "(iii) information relating to the employment or employment history of the individual". A further example is that at "(v) information relating to the individual falling within section 11(6)(a)". Section 11(6)(a) is concerned with personnel records of staff members of FOI bodies.

I am satisfied that the "title of post held and for what time when [Mr A was] employed by" the Department is information relating to Mr A's employment or employment history, and also information relating to Mr A falling within section 11(6)(a) of the FOI Act. Accordingly, I am satisfied that the record contains personal information.

I have also considered the exclusions to what is personal information where current or former public servants are concerned. These narrow exclusions are also set out in section 2 of the FOI Act. In summary, the following do not constitute personal information: the name of the individual in the context of being a member of staff of an FOI body; information regarding the office, position or functions of that member of staff of an FOI body; the terms upon which the member of staff holds office or occupies a position and records created by that employee in the course of and for the purpose of, the performance of his/her functions.

Generally speaking, the exclusions to the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members in the course of their work. They also prevent FOI bodies from relying on section 37 to refuse to grant access to details in records that would identify the public servants who dealt with the matters the subject of those records. However, they do not deprive public servants of the right to privacy generally.

I do not consider the exclusions to cover the record, which summarises Mr A's career history, and includes information such as the dates he started and retired from work; the dates he was promoted and the posts to which he was promoted; and how long he served in those posts. I do not consider this to be the type of information that is excluded from the definition of section 37 where a public servant is concerned. I find that section 37(1) applies to the record.

Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda judgment"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

The FOI Act itself recognises a public interest in ensuring that FOI bodies are open about, and can be held accountable for, how they carry out their functions.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is relevant that the grant of access to records under FOI is accepted to be the same as release of the relevant records to the world at large.

The applicant makes various comments that clearly represent his own private interests in obtaining the records, rather than "true public interest[s]". As already outlined, he appears to question the suitability of the interview board. He also contends that the PAS did not comply with various legislative requirements and/or procedures in its administration of the competition concerned.

I have no remit to consider, or make findings on, the adequacy of any element of the relevant appointment process. It would not be appropriate for me to direct the release of exempt information in the public interest, effectively to the world at large, on the basis of assertions that the appointment process was flawed. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

The public interest has been served to some extent by the information already provided to the applicant by the Department. However, it is hard to see how the grant of access to information about Mr A's Departmental employment history would add anything further to the general understanding of how the PAS administered and ran the competition concerned. I consider that the grant of access to the record would further serve the public interest only to a very limited extent. On the other hand, I accept that the grant of access to the record would result in a significant invasion of Mr A's privacy.

On balance, I find that the weight of the public interest in granting the request for the record is not such that it outweighs the public interest that Mr A's rights to privacy should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant the applicant's request under sections 15(1)(a) and 37(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.